STATE OF OHIO, Plaintiff-Appellee, v. JOSEPH ATWATER, Defendant-Appellant.
No. 107182
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 7, 2020
2020-Ohio-484
Cuyahoga County Court of Common Pleas Case No. CR-17-623180-A Application for Reopening Motion No. 529546
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 7, 2020
Appearances:
Mary Catherine Corrigan and Allison F. Hibbard, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee.
MARY EILEEN KILBANE, P.J.:
{¶ 1} On June 19, 2019, the applicant, Joseph Atwater, pursuant to
{¶ 2} Atwater’s younger female cousin reported that Atwater had sexually abused her, including raping her, multiple times over the last 11 years since she was five years old. The state indicted Atwater for five counts of rape with sexual predator specifications, four counts of kidnapping with sexual motivation specifications, one count of attempted rape, and one count of burglary.
{¶ 3} During a trial to the bench, the cousin testified about what Atwater had done to her. Other witnesses including her mother, her teacher, her principal, and police officers, testified as to the steps taken in the investigation. A forensic scientist for the Ohio Bureau of Criminal Investigation testified that DNA testing revealed that Atwater’s sperm was found in the cousin’s underwear from the most recent incident.
{¶ 5} An application for reopening must be granted “if there is a genuine issue as to whether a defendant has received ineffective assistance of appellate counsel on appeal.”
{¶ 6} Pursuant to Strickland, the applicant must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶ 7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney’s work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that
{¶ 8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 9} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a
{¶ 10} Moreover, appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898); Carran v. Soline Co., 7 Ohio Law Abs. 5 (1928); and Republic Steel Corp. v. Sontag, 21 Ohio Law Abs. 358 (1935). “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.” State v. Burke 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 10.
{¶ 11} Atwater’s first argument is that his convictions are against the manifest weight of the evidence. He proposes that the cousin’s inconsistencies, some impeachment, and the not guilty verdicts for the earlier offenses establish that the cousin’s testimony is incredible. However, the cousin’s testimony combined with the forensic evidence provides substantial evidence from which the trier of fact could reasonably conclude that all the elements had been proven beyond a reasonable doubt. The judge did not lose his way and create a miscarriage of justice. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4346, 794 N.E.2d 27; and State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285. Moreover, Atwater cannot show prejudice. This court implicitly rejected a manifest weight argument
{¶ 12} The court will consider Atwater’s second and third arguments together. Defense counsel had an investigator interview the cousin shortly before trial and record the conversation. Defense counsel tried to send a copy of the recording to the prosecuting attorneys the evening before trial. Because of computer difficulties neither of the two prosecuting attorneys were able to review the recording. Just before defense counsel began his cross-examination of the cousin, the state raised the problem to the trial court. After confirming that neither prosecuting attorney had heard the recording, defense counsel proposed that he could send the 45-minute recording again to allow the prosecution to prepare. The trial judge responded: “And now in the middle of trial you’re proposing to introduce this and to — no, I am not going to allow it.” (Tr. 72.) From this Atwater argues that his trial counsel was ineffective because he did not engage in reciprocal discovery and precluded himself from effectively cross-examining the cousin. Alternatively, he argues that the trial court abused its discretion in not allowing defense counsel to use the audio tape for any purpose, including cross-examination. Thus, Atwater complains that he was denied his Sixth Amendment rights to effective assistance of trial counsel and to cross-examination.
{¶ 13} However, appellate counsel was not deficient for failing to argue these issues, because he could not establish prejudice. Atwater does not state what was in the recording nor does he offer it for our consideration. He does not show where in
{¶ 14} Atwater’s final argument is that he was denied his Sixth Amendment right to effective assistance of trial counsel because his trial counsel repeatedly failed to object to hearsay testimony. After the cousin testified, her mother, the cousin’s teacher, the principal, and police officers testified on the course of the investigation, including what they learned from talking with the cousin and the mother. During these witnesses’ direct examinations, defense counsel objected at least six times. Nevertheless, Atwater now complains that his trial counsel was deficient for allowing improper hearsay to be presented.
{¶ 15} In State v. Campbell, 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181; and State v. Thompson, 8th Dist. Cuyahoga No. 99846, 2014-Ohio-1056, this court observed that the main premise behind the hearsay rule is that the adverse party is not afforded the opportunity to cross-examine the declarant. Thus, when the declarants — in this case the cousin and the mother — are subject to
{¶ 16} Accordingly, the court denies the application to reopen.
MARY EILEEN KILBANE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR